IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
+ C.C.C.A. No.194 of 1998
% Dated 01.10.2012
# State of A.P. rep. by Collector, Hyderabad
District, Nampally, Hyderabad
…Appellants
Vs.
$ B. Ranga Reddy and others.
…Respondents
! Counsel for the Appellants: Sri A. Sudershan Reddy,
Advocate-General
^ Counsel for the Respondents: Sri Challa Sitaramaiah, learned Senior
Counsel, representing Sri B. Rajendra
and M. Narender Reddy
? Cases Referred:
- (1974) 2 SCC 151
- (1979) 4 SCC 163
- (2005) 6 SCC 304
- 1993 Supp(2) SCC 146
- 1993 Supp(2) SCC 149
- 1995(2)ALT 122(DB)
- AIR 1966 SC 1332
- (2010) 7 SCC 717
- AIR 1996 Karnataka 296
- (1974) 2 SCC 393
- (1995) 6 SCC 733
- (2007) 11 SCC 75
- (2001) 8 SCC 173
- AIR 1996
- AIR 1995 SC 1205
- (2004) 1 SCC 712
- (2002) 2 SCC 85
- (2003) SCC 34
- (2003) 9 SCC 606
Order:
The preliminary objection raised by Sri Challa Sitaramaiah, learned Senior Counsel, representing Sri B. Rajendra and M. Narender Reddy, learned counsel for the respondents, is that the present appeal is not maintainable since the appellants herein i.e., State of Andhra Pradesh have not challenged the common findings in O.S. Nos.274 and 276 of 1983, but challenged only the findings in O.S. No.141 of 1984 and, therefore, this appeal is hit by the principle of Res judicata.
The brief facts of the case are as follows. One Ghulam Ahmed Khan filed O.S. No.274 of 1983 claiming title to an extent of Ac.6.08 guntas in Survey No.9/13, Khairatabad village, within the specified boundaries seeking declaration of title and for injunction. One Mohd. Osman filed O.S. No.276 of 1983 claiming title to an extent of Ac.3.00 guntas in Survey No.9/13 of Khairatabad village within the specified boundaries. One Ranga Reddy, Vijaya Reddy and 7 others filed O.S. No.141 of 1984 claiming title to an extent of Ac.19.23 guntas in Survey Nos.49 and 50 in Rasoolpura village, Hyderabad
All these three suits were tried together; evidence was recorded in O.S. No.274 of 1983. The defendants Nos.5 to 9 i.e., State of Andhra Pradesh, represented by its District Collector, Hyderabad and other officials in O.S. No.274 of 1983 were arrayed as Defendants 3 to 7 in O.S. No.276 of 1983 and defendants 3, 4, 5, 9 and 10 in O.S. No.141 of 1984. The plaintiffs in O.S. Nos.274 and 276 of 1983 were arrayed as defendants 1 and 2 in O.S. No.141 of 1984. The plaintiffs 1 and 2 in O.S. No.141 of 1984 were arrayed as defendants 1 and 2 in O.S. No.274 of 1983. The first plaintiff in O.S. No.141 of 1984 was arrayed as defendant No.1 in O.S. No.276 of 1983.
The main question in all these three suits was whether the disputed land forms part of Survey No.9/13 in Khairatabad village as claimed by the plaintiffs in O.S. Nos.274 and 276 of 1983 or forms part of Survey Nos.49 and 50 in Rasoolpura as claimed by the plaintiffs in O.S. No.141 of 1984 or in Survey No.43 of Bholakpur village as claimed by the State of A.P.
The specific case of the State of A.P., is that Survey No.9/13 is situated to the side of the Secretariat building besides mint compound and whereas the Ministers Road is situated at the side of Deccan Continental Hospital and, therefore, there is no relevancy between the boundaries of the suit schedule property as mentioned by the plaintiffs. It is also the case of the State of A.P. (hereinafter referred to as ‘Government’ for convenience since referred as Government in the lower Court judgment) that Survey No.43 of Bholakpur village is a Government Shikkam Talab i.e., Tank Bed Government land and such lands vest in Government.
On behalf of the plaintiffs, PWs. 1 and 2 were examined and Exs.A-1 to A-4 were marked. On behalf of the defendants, DWs. 1 to 12 were examined and Exs.B.1 to B.90 were marked. Exs.C-1 to C-3 and EXs.X.1 to X.10 were also marked. The issue No.1 is almost same in all the three suits.
In O.S. No.274 of 1983, the issue No.1 is as follows. Whether the suit property is part of Survey No.9/13 of Khairatabad village as claimed by the plaintiffs or whether it is a part of Survey Nos.49 and 50 of Rasoolpura village as claimed by the defendants 1 and 2 or whether it is the part of Survey No.43 of Bholakpur village as claimed by the Government? On this issue in O.S. No.274 of 1983, the lower Court gave a finding that the plaintiffs miserably failed to establish that the suit property forms part of Survey No.9/13 of Khairatabad village, and the Government also failed to establish that the suit land forms part of Survey No.43 of Bholakpur village, but held that the defendants 1 to 4 clearly established that that the suit land forms part of Sy.Nos.49 and 50 of Rasoolpura village. In the result, the lower Court dismissed the suit in O.S. No.274 of 1983. With regard to issue No.1 in O.S. No.276 of 1983 i.e. which is almost the same issue as framed in O.S. No.274 of 1983, the lower Court held that the finding of issue No.1 in O.S. No.274 of 1983 holds good therein also. Similar finding was given in O.S. No.141 of 1984 also. As far as the findings in O.S. No.274 and 276 of 1983 are concerned, the Government i.e. , defendants 5 to 9 in O.S. No.274 of 1983 and the defendants 3, 4, 5, 9 and 10 in O.S. No.276 of 1983 have not preferred any Appeal. Therefore, the findings on issue No.1 in O.S. Nos.274 and 276 of 1983, according to the learned Senior Counsel for the respondents became final and therefore those findings operate as res judicata between co-defendants. The plaintiff in O.S. No.274 of 1983 preferred an appeal in C.C.C.A. No.1 of 1999, the plaintiff in O.S. No.276 of 1983 preferred an appeal in C.C.C.A. No.7 of 1999, the defendants 1 and 2 in O.S. No.141 of 1984 preferred C.C.C.A. No.206 of 1998 and the Government i.e., defendants 3 to 6 and 9 to 13 in O.S. No.141 of 1984 preferred C.C.C.A. No.194 of 1998.
The main contention of Sri Challa Sitaramaiah, learned Senior Counsel, representing Sri B. Rajendra and M. Narender Reddy, learned counsel, is that as far as the Government is concerned the findings against the Government in O.S. Nos.274 and 276 of 1983 became final and operate as res judicata. Thus, his main contention is that the appeals filed by the Government are not maintainable since the findings have become final and hit by the principles of res judicata. Sri Sitaramaiah has placed reliance on some decisions which will be referred while discussing the points.
The learned Advocate-General Sri A. Sudershan Reddy has submitted that the plea of res judicata may not deserve any consideration. His main submission is that no decree is passed against the Government in O.S. Nos.274 and 276 of 1983 and when the Government have not suffered any decree the question of filing an appeal against such decree does not arise and there is no possibility to prefer an appeal. It is also submitted that no appeal lie against a mere finding and therefore even if there is some finding against the Government, there is no need to file an appeal. It is submitted that the Government have disputed the boundaries and location of the suit property and the suits filed by the plaintiffs in those two suits have been dismissed.
The main submission of the learned Advocate-General is that the government have suffered a decree in O.S. No.141 of 1984 and therefore the Government preferred an appeal against the judgment and decree passed in O.S. No.141 of 1984 and the unsuccessful plaintiffs in other two suits filed appeals. The learned Advocate-General referring to Order 41 Rule 33 of CPC submitted that the appellate Court shall have power to pass any decree and make any order notwithstanding the fact that no appeal has been preferred challenging a part of the decree and such power may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objections. It is further argued that the lower Court based its findings on the judgments of the Special Court Land Grabbing Court
It is not in dispute that the three suits in O.S. Nos.274 and 276 of 1983 and O.S. No.141 of 1984 are tried together and a common judgment has been delivered, however, three separate decrees and judgments have been passed.
It is not in dispute that C.C.C.A. No.1 of 1999, C.C.C.A. No.7 of 1999 and C.C.C.A. No.194 of 1998 have been filed challenging the judgment and decree passed in O.S. Nos.274 and 276 of 1983 and O.S. No.141 of 1984 respectively. It is also not in dispute that the Writ Petition Nos.260 and 2111 of 1998 have been preferred by the State Government against the judgments of the Special Court referred above in Exs.B.88 and 89 and those writ petitions have been allowed on 04.06.2009 and the matter has been remanded back to the Special Court; after remand, the Special Court has allowed L.G.C.Nos.104 and 105 of 1990 on 04.07.2011 while recording the finding that the land grabbed is found to be falling on the northern side of the railway track, a part of Survey No.43 of Bholakpur village. The learned Advocate-General argued that the contentions of the plaintiffs in O.S. No.141 of 1984 is that Survey No.43 does not fall on the northern side of the railway track is not available to them since the earlier judgments marked in Exs.B.88 and 89 have been set aside and subsequently different view has been taken by the Special Court constituted under the Land Grabbing Act. It is also contended that since the appeals have been filed challenging the judgments in O.S. Nos.274 and 276 of 1983, they have not attained finality and therefore, the respondents cannot plead that the findings in those decisions act as res judicata to the present appeals.
Sri Challa Sitaramaiah submits that challenging the judgments in LGC Nos.104 and 105 of 1990, dated 04.07.2011, W.P. Nos.34050 and 21554 of 2011 are filed and they are now pending before this Court.
Since the judgments in LGC Nos.104 and 105 of 1990 dated 04.07.2011 seems to have been challenged in Writ Petition Nos.34050 and 21544 of 2011 now it cannot be said that the findings of the lower Court in the common judgment have lost its basis.
In the above circumstances, the points that arise for consideration are :
1) Whether the findings of the lower Court on issue No.1 in O.S. Nos.274 and 276 of 1983 have to be treated as decree and whether they operate as res judicataagainst the Government, since the Government have not filed any appeals challenging the said findings?
2) Whether the Government of Andhra Pradesh was not required to file appeals on the ground that no enforceable decree was passed against it?
Section 11 of CPC reads as follows.
11. Res Judicata: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation II.- For the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI.- Where persons litigate bona fide in respect of a public right or of a private right, claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue of former suit shall be construed as references respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.- An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”
To attract the principle of Res judicata it is necessary that the issue in the present suit and in a former suit must be directly and substantially the same issue and the Court must be a competent Court. As far as the competency of Court is concerned the same is not in dispute. It is also settled law that the Res judicata debars a Court from exercising its jurisdiction to determine the lis if it has attained finality. Though the principle no doubt appears to be technical aspect but the same appears to be on the principle that there should be a finality to the litigation and no party shall be allowed to raise the same issue which has been decided between the same parties in a previous suit.
Order 14 of the CPC which deals with the issues, is as follows:
1. Framing of issues: (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties arc at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
Thus, issues are framed with regard to only those pleadings which are asserted by one party and denied by the other. Admittedly, issue No.1 in these suits has been framed basing on the pleadings of the parties.
Order 14, Rule 2 of CPC reads as follows.
2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2) pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
Order 20 Rule 5 CPC reads as follows.
5. Court to state its decision on each issue: In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit.
Order 20 Rule 6 CPC reads as follows.
6. Contents of decree.- (1) The decree shall agree with the judgment; it shall contain the number of the suit, names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
Decree is defined in Section 2 of CPC, which reads as follows.
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Sec. 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and party final.
Section 96 deals with the appeals, which is as follows.
96. Appeal from original decree.- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court .exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by courts of small causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees.
Thus, it is clear that an appeal shall lie from a decree. A plain reading of definition of ‘decree’ reveals that decree means the formal expression of adjudication whereby the court conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.
Thus, it is clear that “decree” does not mean only the operative portion of the judgment. The common understanding of “decree” that it is only an operative portion of judgment appears to be not correct.
A combined reading of the definition of ‘decree’, Order 14 Rule 1 of CPC makes it clear that the decision on issues or on any matter in controversy shall be deemed to be a decree.
Admittedly, the plaintiff in O.S. No.274 of 1983 filed a suit for declaration and title and for permanent injunction. His specific case is that the suit schedule land measuring Ac.6-08 guntas, forms part of larger extent of Ac.26-00 and 0-38 guntas in Sy.No.9/13 of Khairatabad village, Taluq Garbe, Zilla Atraf Balda, Surfekhas Mubarak, originally belonged to Surfekhas,Hyderabad
The case of the first defendant is that the suit land forms part of Survey Nos.49 and 50 of Rasoolpura village. On behalf of the Government fifth defendant i.e., the Collector, Hyderabad District, filed written statement. It appears that the Collector in his written statement admitted that the then Collector passed judgment in Case No.119 of 1355 FAsli in file No.2222 deleting the Sy.Nos.49 and 50 of Rasoolpura village as the same were overlapping Sy.No.43 of Bholakpur village. However, it is denied that the names of the plaintiff and others were directed to be entered into the revenue records as the pattedars.
The specific case of the Government is that the suit property is the Sikhim Talab Government land and neither the plaintiff nor the defendants 1 to 4 have any right over the said property.
The plaintiff in O.S. No.276 of 1983 claimed an extent of Ac.3-00 guntas on the same grounds as pleaded by the plaintiff in O.S. No.274 of 1983. The defence of the defendants is almost same. Thus, the Government has taken a specific stand that the suit land is in Sy.No.43 of Bholakpur village and not in Sy.No.9/13 of Khairatabad village and Sy.Nos.49 and 50 of Rasoolplura village. Thus, the main controversy that fell for consideration is whether the disputed land forms part of Sy.Nos.9/13 as claimed by the plaintiffs in O.S.Nos.274 and 276 of 1983 or Sy.Nos.49 and 50 of Rasoolpura as claimed by the plaintiffs in O.S. No.141 of 1984 or Sy.No.43 of Bholakpur village as claimed by the Government.
It appears that the lower court has not believed Ex.A5 assigning certain reasons. There is no need to discuss that point whether the reasons assigned by the lower Court are valid or not while deciding the preliminary objections. Suffice to say that the lower Court passed a detailed judgment and decided the main controversy between the parties. It has to be seen that not only the judgments of the Special Court
In the above circumstances, we have to see whether the principle of res judicata apply when the Government have not filed appeals challenging the judgments passed in O.S. Nos.274 and 276 of 1983.
It has to be seen that in the operative portions of the judgments the lower Court categorically held that the plaintiffs failed to establish that the suit property forms part of Sy.No.9/13 of Khairatabad village but the defendants 1 to 4 clearly established that it forms part of Sy.Nos.49 and 50 of Rasoolpura village. However, the Government also failed to establish that the suit land forms part of Sy.No.43 of Bholakplur village. In O.S. No.141 of 1984 the lower Court on issue No.1 held that the findings of issue No.1 in O.S.No.274 of 1983 holds good and coming to issue No.2, the lower Court held that the plaintiffs established their title and they are entitled for the reliefs of declaration and possession. Though they were in possession of the property originally, the Special Executive Magistrate took possession of the property after the initiation of Section 145 of Cr.P.C proceedings. So, the Government is bound to surrender possession to the plaintiffs in this suit O.S. No.141 of 1984.
It is true that on Issue No.6 in O.S. No.141 of 1984 there was a specific direction to the Government to deliver possession of the suit property to the plaintiffs within two months. It is also a fact that there is no specific direction against the Government in the decree as far as O.S. Nos.274 and 276 of 1983 are concerned, but the fact remains that, a specific finding was given in those cases that the Government failed to establish that the suit land forms part of Sy.No.43 of Bholakpur village and it was further held that defendants 1 to 4 established that it forms part of Sy.Nos.49 and 50 of Rasoolpura village. Thus, there is a clear declaration of rights and title of the parties. It appears that when there is a clear declaration that the Government failed to establish that the suit land forms part of 43 of Bholakpur village and that the defendants 1 to 4 proved that it forms part of Sy.Nos.49 and 50 of Rasoolpura village such findings, when not challenged seems to have became final. When such findings have been given in common judgment and when appeal is filed challenging the judgment and decree passed in one suit and the findings in other two suits remain unchallenged, such findings become final. When findings declaring the rights of the parties become final they operate as res judicata in subsequent proceedings. The plaintiffs in O.S.Nos.274 and 276 of 1983 have challenged the findings of the lower Court and their main contention is that the lower Court committed an error in not localizing the land with reference to the revenue records in proper perspective. They have also taken a ground that plaintiffs in O.S. No.141 of 1984 failed to trace their source of title, the Government filed CCCA No.194 of 1998, the findings of the lower Court in O.S. No.141 of 1984 have been challenged on various grounds, of course the findings are common since the three suits have been clubbed together and the issues settled are also common. It appears that in the appeals filed by the plaintiffs in O.S. Nos.274 and 276 of 1983 the main question that falls for consideration is whether thesuitproperty is in Sy.No.9/13 of Khairatabad or in Sy.Nos.49 and 50 of Rasoolpura village. The point raised by the Government whether suit property is in Sy.No.43 of Bholakpur village and it is Government land cannot be considered in the appeals filed by the plaintiffs in O.S. Nos.274 and 276 of 1983. Even if it is argued that the conflict is between co-defendants, the principle of res judicata appears to be applicable.
The learned Senior Counsel Sri Challa Sitaramaiah has placed reliance on the following decisions: In a decision of the Apex Court
“Now it is settled by a large number of decisions that for a judgment to operate as res judicata between or among co-defendants, it is necessary to establish that (1) there was a conflict of interest between co-defendants; (2) that it was necessary to decide the conflict in order to give the relief which the plaintiff claimed in the suit and (3) that the Court actually decided the question.”
It is also further submitted that the contesting parties must not be common and in support of his contention reliance is placed on the decision of the Apex Court Madhya Pradesh Apex Court
“The plea of res judicata may be sustained, without anything more, if the questions at issue and the parties are the same, subject of course to the other conditions prescribed by S. 11 Civil Procedure Code. It is, however, not necessary that all the parties to the two litigations must be common. It is sufficient that the issue should be between the same parties or between parties under whom they or any of them claim. Further, once the questions at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference.
In order to sustain the plea of res judicata, it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim.”
For the same proposition, reliance is placed in case between Makhija Construction and Engineering (Petitioner) Limited v. Indore
“The principle of res judicata has been held to bind co-defendants if the relief given or refused by the earlier decision involved a determination of an issue between co-defendants (or co-respondents as the case may be)”
It is further argued that the Government have not filed cross-objections, therefore it cannot question the findings without filing either the appeal or cross-objections, however it may support the findings of lower Court. Reliance is also placed on the decisions of the Apex Court India
The Division Bench of this Court placing reliance on the judgment of the Apex Court
In the above referred decision, the Apex Court
“Four suits were consolidated and tried together with the consent of the parties. By a common judgment, the civil Court disposed of the four suits but separate decrees were drawn up in each suit. Five issues were common in all the suits, and there were other issues in each case separately. One of the common issues related to the respective rights of the parties to the suit property. Against the decrees in the four suits, two appeals were preferred to the High Court and two appeals to the District Court and later the appeals were transferred from the District Court to the High Court to be heard along with the other two connected appeals. Two of the four appeals were dismissed by the High Court – one on the ground of limitation and the other on account of failure to apply for translation and printing of the record as required by the rules of the High Court. The question as whether the dismissal of the two appeals would constitute res judicata in so far as the other two surviving appeals were concerned. A Full Bench of the Allahabad High Court took the view that the surviving two appeals must fail on the ground of res judicata.”
Then, this Court observed as follows.
“We are therefore of opinion that where a decision is given on the merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.”
The decree which attained finality cannot be disturbed indirectly by adjudicating the very same questions in the present appeal.
Sri Challa Sitaramaiah, learned Senior Counsel, has relied on a decision of the Apex Court
The learned Senior Counsel placing reliance on the decision of the High Court of Karnataka in case between N. Hanumantha Rao v. Corporation of the City of Bangalore[9], has also referred to Order 41, Rule 1 and Section 11 of CPC and submitted that the word used in Section 11 is finding of issue and it does not refer to any enforceable decree or direction. Thus, his main contention is that when there is a specific finding such finding has to be challenged by filing an appeal and when no appeal is filed, Section 11 of CPC attracts.
Learned Advocate-General has relied on the judgment reported in Smt. Ganga Bai v. Vijay Kumar[10]. In that case defendant No.1 executed a mortgage deed his behalf and his minor son. The plaintiff filed a suit and obtained preliminary decree for the sale of defendant No.1’s interest in the mortgaged property. Defendants 2 and 3, sons of defendant No.1, pleaded partition. However, the trial Court held that the partition deed was a sham and colourable transaction. The plaintiff filed an appeal against the decree directing the sale of half of the mortgaged property only. Defendants 2 and 3 filed appeals and subsequently moved an amendment to challenge the preliminary decree. The amendment was allowed and the High Court set aside the preliminary decree and held that the deed of partition was real and genuine. When the matter was carried to the Apex Court Apex Court
“It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against a mere finding recorded by the trial Court that the partition was not genuine.”
In para 25 of the judgment the Apex Court
“Whether the partition between the father and sons was sham or real had no impact on the judgment of the trial Court and made no material difference to the decree passed by it. The finding recorded by the trial Court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the Court were to find that the partition was genuine, the mortgage would only have bound the interest of the father as the debt was not of a character which, under the Hindu law, would bind the interest of the sons………”
It was further observed thus.
“As the matte relating to the partition was not directly and substantially in issue in the suit, the finding that the partition was sham cannot operate as res judicata.”
Thus, it has to be seen that the finding recorded by the trial Court that the partition was a colorable transaction was found to be unnecessary for the decision of the suit and thus the issue of partition was not directly and substantially an issue in that suit, but in this case the finding on issue No.1 which went against the Government appears to be a finding was on main controversy and it cannot be said that such finding do not make any material difference or unnecessary operate as res judicata. In the circumstances, it appears that the above referred decision can be distinguished on facts.
Learned Advocate-General has relied on a decision reported in Deva Ram v. Ishwar Chand[11]. In that case on facts it was found that in subsequent suits, the issue which was raised and tried in the previous suit was not raised, framed and tried and no finding therefore came to be recorded as to whether the defendants were tenants of the land in the suit. In para 24 of the said decision it was observed as follows.
“In the previous suit, which was instituted by the respondents, an issue, namely, Issue No.5 was framed on the status of the appellant as to whether they were the tenants of the land in suit under the respondents but in the subsequent suit this issue was not raised as the appellants who were the defendants in the subsequent suits did not plead that they were the tenants under the respondents. What they pleaded was that they were in possession since a long time namely from Samvat 2005 and had, therefore, acquired title by adverse possession. Consequently, in the subsequent suits, the issue which was raised and tried in the previous suit was not raised, framed or tried and no finding, therefore came to be recorded as to whether the defendants were tenants of the land in suit. It is true that the instant suit which is the subsequent suit, is between the same parties who had litigated in the previous suit and it is also true that the subject matter of this suit, namely, the disputed land, is the same as was involved in the previous suit but the issues and causes of action were different. Consequently, the basic requirement for the applicability of rule of res judicata is wanting and, therefore, in the absence of pleadings, in the absence of issues and in the absence of any finding, it is not open to the learned counsel for the appellants to invoke the rule of res judicata on the ground that in the earlier suit it was found by trial Court that the appellants were the tenants of the land in dispute under the respondents.”
Thus, it was finally held that an appeal does not lie against mere findings recorded by the Court unless the findings amount to a decree or order. Thus, what is to be seen is whether the findings amount to a decree or order. The crux of the issue appears to be whether a person is prejudicially and adversely affected by the decree. Since the issue in the previous suit was not the issue in the subsequent suit in the above referred decision, the said decision can be distinguished on facts.
In S. Nazeer Ahmed v. State Bank of Mysore[12], the appellant borrowed a sum of Rs.1,10,000/- from the plaintiff Bank for purchase of a bus. He secured repayment of that loan by hypothecating the bus and further by equitably mortgaging two items of immovable properties. The Bank first filed O.S. No. 131 of 1984 for recovery of the money due. The said suit was decreed. The Bank, in execution, sought to proceed against the hypothecated bus. The bus could not be traced and the money could not be recovered. The Bank tried to proceed against the mortgaged properties in execution. The appellant resisted by pointing out that there was no decree on the mortgage and the bank could, if at all, only attach the properties and could not sell it straightaway. That objection was upheld. The Bank thereupon instituted the present suit, O.S. No. 35 of 1993, for enforcement of the equitable mortgage. The appellant resisted the suit by pleading that the suit was barred by Order II Rule 2 of the Code of Civil Procedure. The trial Court held that the suit was not hit by Order II Rule 2 of the Code, however, the suit was dismissed holding that it was barred by limitation. The Bank filed an appeal in the High Court. The High Court held that though the suit is hit by Order 2 Rule 2 of the Code, but since the appellant had not challenged the finding of the trial Court that the suit was not hit by Order 2 Rule 2 of the Code by filing a memorandum of cross-objections, the plea in that behalf could not be and need not be upheld. The Apex Court Apex Court
“………The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross-objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis that the appellant not having filed a memorandum of cross-objections, was not entitled to canvass the correctness of the finding on the bar of Order II Rule 2 rendered by the trial court.”
In the present case, there is clear finding against the Government. When there is a clear finding that the suit land does not form part of Survey No.43 of Bholakpur village as claimed by the Government, it was obligatory on the part of the Government to file cross-objections. What Government can do is it can support the findings of the lower Court. The findings of the lower Court is that the suit land forms part of Survey Nos.49 and 50 of Rasoolpura village. Obviously the Government cannot support such finding, because its case is that the suit land forms part of Survey No.43 of Bholakpur village.
In the appeals filed by the plaintiffs the main question that falls for consideration is whether the suit properties form part of Survey No.9/13 of Khairatabad village or it forms part of Survey Nos.49 and 50 of Rasoolpura village. The question whether the suit land forms part of Survey No.43 of Bholakpur village as claimed by the Government does not fall for consideration in the appeals in CCCA 1 of 1999 or in CCCA No.9 of 1999 i.e., appeals filed by the plaintiffs in O.S. Nos.274 and 276 of 1983. Therefore, without filing cross-objections the Government cannot challenge the findings of the trial court.
In Rachakonda Narayana v. Ponthala Parvathamma[13], relied on by the learned Advocate-General, the plaintiff entered into an agreement of sale to purchase plot A comprising 2 acres patta land and plot B comprising Ac.1.30 Cents Sivaijama land from defendant No.1. One Bhima Naik issued a registered notice claiming that he is the owner of the land comprising in plot B measuring Ac.1.30 Cents and that the defendant No.1 has no right to sell the same. Then the plaintiff filed a suit for specific performance of the agreement against defendant No.1 in respect of Ac.2-00 of patta land only and sought proportionate deduction of the price for the land. Defendant No.1 took a plea that the plaintiff cannot seek to enforce a new contract. The Trial Court held that the plaintiff is not entitled to seek enforcement of new contract. The plaintiff filed an appeal before the first appellate Court. Before the first appellate Court for the first time it was stated by defendant No.1 that he has no title in respect of plot B land and the same belonged to his wife. The first appellate Court decreed the suit holding that the plaintiff is entitled to decree for specific performance in respect of the land comprised in plot A measuring Ac.2-00 of land. The defendant preferred second appeal and the second appeal was allowed holding that since the plaintiff did not come with the suit claiming the benefit of sub-section (3) of Section 12 of the Specific Relief Act and claimed performance of only part of the whole agreement, and therefore he was not ready and willing to perform his part of the whole contract. Then the Apex Court, taking into consideration of the fact that for the first time at the appellate stage defendant No.1 stated that he had no title in respect of plot B Sivaijama land and it is on account of the said statement the plaintiff filed an application for amendment of the plaint relinquishing his claim in respect of Plot B of land and under the circumstances it was open to the plaintiff to move for amendment of the plaint pleading therein the ingredients for part-performance of the contract as provided under sub-section (3) of Section 12 of the Act. In the above circumstances, it was observed that an appeal is a continuation of the suit. When an appellate court hears an appeal, the whole matter is at large. The appellate Court can go into any question relating to rights of the parties which a trial Court was entitled to dispose of provided the plaintiff possess that right on the date of filing of the suit.
There cannot be any doubt to say that an appeal is continuation of the suit. In view of the stand taken by defendant No.1 the appellant moved an application for amendment of the plaint. In this case, the Government have not filed any appeal nor cross-objections. Had Government filed an appeal, it could have said that the whole matter is at large and the appellate Court can go into any question relating to the rights of the parties. Without filing an appeal and cross-objections, in my considered view, the Government cannot challenge the findings recorded by the trial Court which went against it.
In Kuppuswami v. Krishnaveni[14], the plaintiffs filed suit for injunction. The said suit has been dismissed by the trial Court as well as by the appellate Court holding that the plaintiffs are trespassers and they are not entitled for injunction. The Trial Court held that there was an encroachment by the plaintiffs to the extent of one foot. Aggrieved by the said observation the first defendant filed cross-objections in the appeals filed by the plaintiffs. The cross-objection has been dismissed without any discussion. The Madras High Court held that the cross-objection itself is not maintainable since the decree is not based on finding about the extent of trespass but is based on the factum of the trespass. I am unable to agree with the view taken by the Madras High Court. It is clear to my mind that a decree means not only an enforceable decree. Many persons seem to have under a wrong impression that the decree means an enforceable decree i.e., operative portion of the judgment. The definition of decree under Section 2(2) of CPC makes it clear that the “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Thus, it appears that a formal expression of an adjudication whereby the Court which conclusively determines the rights of the parties with regard to all or any of the matters in controversy on all or any one issue in a suit amounts to a decree. Therefore, wherever there is a clear finding by a Court, the finding which exclusively determines the rights of the parties amounts to a decree. Suppose in a case a woman as first plaintiff claims maintenance for herself and also for her minor son i.e., the second plaintiff, if a finding is given in such a suit that the said woman is not the legally wedded wife of the defendant and that the second plaintiff is not the legitimate son of the defendant, whether the plaintiffs are not effected by such finding. Even if maintenance is granted to second plaintiff on the ground that illegitimate son is also entitled for maintenance whether the finding that the second plaintiff is not the legitimate son of the defendant has to be challenged or not. Therefore, in a case where there is a clear finding adjudicating the rights of the parties or declaring the status of the parties or declaring the rights of the parties or a conclusive finding has been given with regard to localization of the disputed property such finding in my view assumes the character of a decree and if not challenged operates as res judicata in future proceedings between the same parties. Such findings have to be challenged by filing an appeal or at least by filing cross objections.
In Mahboob Saheb v. Syed Ismail[15], one Maqdoom had entered into an agreement of sale to sell his land and had also executed sale deeds to discharge antecedent debts. A suit for specific performance was filed against the said Maqdoom in O.S. No.4 of 1966 and the said suit was decreed. In another suit filed by one Ismail on the foot of promissory mortgage it was held that Maqdoom had jointly gifted the lands to his sons and wife by registered gift deed. The question that came up for consideration is whether the decree in O.S. No.3/1/1951 operates as res judicata. It was held that no evidence has been adduced to establish acceptance of the gift by or on behalf of the minor or delivery of possession or taking possession. It was also held that the gifts have not been proved. The Apex Court Apex Court
“………….But for application of this doctrine between co-defendants four conditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit. This is the settled law as held in S. M. Sadat Ali Khan v. Mirza Wiquar Ali, AIR 1943 PC 115; Shashibushan Prasad Mishra v. Babjui Raj, (1969) 2 SCR 971: ( AIR 1970 SC 809); and Iftikhar Ahmed v. Syed Meharban Ali, (1974) 2 SCC 151: (AIR 1974 SC 749)”
“………..In other words, if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the court will try and decide the case, and the co-defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other.”
“………..The doctrine of res judicata must, however, be applied to co-defendants with great care and caution. The reason is that fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. If a party obtains a decree from the court by practising fraud or collusion, he cannot be allowed to say that the matter is res judicata and cannot be re-opened. There can also be no question of res judicata in a case where signs of fraud or collusion are transparently pregnant or apparent from the facts on record.”
In the present case, it is clear that there is a conflict of interest between the co-defendants and there is no allegation that the lower Court decree was obtained by playing fraud or collusion. Therefore, the said decision appears to be not helpful to the appellants.
The learned Advocate-General has relied on a decision reported in Dharam Dutt v. Union of India[16]. In that case, on 30.06.1990, the President of India promulgated an Ordinance whereby a statutory body known as the Indian Council of World Affairs was constituted with power to hold and dispose of property both movable and immovable. The constitutional validity of this Ordinance was challenged by filing a writ petition before the High Court of Punjab and Haryana at Chandigarh Apex Court Apex Court
In that case the Union of India being an aggrieved party filed the appeal. In the above circumstances it was observed that filing of an appeal destroys the finality of the judgment under appeal. In the case on hand, the Government have not filed any appeal or counter claim challenging the findings of the lower Court with regard to claim of the Government.
Reliance is also placed on the decision in Madhukar D. Shende v. Tarabai Aba Shedage[17], wherein it was held that res judicata is mixed question of fact and law. In that case no arguments were advanced raising the plea of res judicata before any of the Courts below or the High Court.
In Baldev Singh v. Surinder Mohan Sharma[18], one Ajay Kumar filed a suit for permanent injunction against the first respondent. The said suit was dismissed as withdrawn. It appears that the first respondent entered into an agreement to sell the property with the father of the appellant. The first respondent filed a suit for possession against Ajay Kumar treating him as his tenant and the appellant as sub-tenant. In that case the appellant made a statement that he had been staying with his wife Paramjit Kaur and his first wife is Sarbjit Kaur. On the basis of the said statement, the first respondent made complaints to the employers of the appellant alleging that he contracted second marriage during the life time of his first wife. A suit was filed by Sarbjit Kaur contending that the appellant had divorced her in the year 1982 and that the said suit was decreed declaring that the marriage of Sarbjit Kaur and the appellant had been dissolved with effect from 27.01.1982. Questioning the said judgment, the first respondent filed an application before the High Court of Punjab and Haryana atChandigarh Apex Court Apex Court Apex Court
Both Sri Challa Sitaramaiah, learned Senior Counsel, and the learned Advocate-General have referred to the judgment reported in Banarsi v. Ram Phal[19]. In that case, the first respondent filed a suit for specific performance contending that based on the agreement of sale dated 03.11.1988 he had paid an amount of Rs.2,40,000/- and agreed to pay the balance of Rs.50,000/- at the time of execution of the sale deed. The appellants filed a separate suit seeking cancellation of the agreement of sale on the ground that the nature of transaction between the parties was one of loan. The two suits were consolidated and tried together. In the judgment, the appellants were directed to deposit the amount paid by the first respondent within two months and it was further directed that if the appellants/defendants failed to deposit the said amount within a period of two months, the plaintiff was directed to deposit Rs.50,000/- and to get the sale deed executed in his favour. The appellants filed two appeals in the High Court and both the appeals were dismissed. The respondent did not prefer any appeal of his own nor filed any cross-objection. However, while rejecting the appeals, the appellate Court held that the suit filed by the plaintiff Ram Phal is liable to be decreed for specific relief and original suit filed by Banarsi is liable to be rejected. The appellants preferred two second appeals. The High Court dismissed both the appeals holding that no substantial question of law arose for consideration. Then the matter was carried to the Apex Court Apex Court Apex Court
“Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal (See Phoolchand and Am: vs. Gopal Lal 1967 (3) SCR 153; Smt. Jatan Kanwar Golcha vs. M/'s. Golcha Properties (P) Ltd. 1970 (3) SCC 573 : Smt. Ganga Bai vs. Wjay Kumar and Ors.- (1974) 2 SCC 393). No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment.
Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the Court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plain tiff, in an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging finding on ground (B) and persuade the appellate court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of defendant-appellant the decree; could still be sustained by reversing the finding on ground (B) though the plaintiff-respondent has neither preferred an appeal of his own nor taken any cross objection. A right to file cross objection is the exercise of right to appeal though in a different form. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross objection though certain finding may be against him. Appeal and cross-objection - both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was well-settled position of law under the Unamended CPC.
The CPC Amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations: - (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent; (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent; (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
In the type of case (i) it was necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him, if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross objection as he was not the person aggrieved by the decree. Under the amended CPC. read in the light of the explanation, though it is still not necessary for the respondent to take any cross objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross objection is. spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In pre-amendment era. the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.
The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage.”
The findings are of two kinds. Finding may be a decision on an issue framed in a suit and will only cover material questions which arise in a particular case for decision. The Court may give final decision on an issue i.e., upon a controversy between the parties. There may be a finding which may not be necessary or called for while deciding the main controversy between the parties. Where a finding, if on a material issue, which declares the rights of the parties, comes within the definition of a decree, has been given, such finding has to be challenged though there may not be any executable decree against the party. A party need not challenge a finding which is not absolutely necessary nor called for in a suit, but where it appears that a finding which effects the rights of the parties or declares the right or title of a party and if not challenged would become final and may operate as res judicata and such finding is to be treated as a decree though not an executable decree and has to be challenged in an appeal.
In the case on hand, the lower Court has given a categorical finding against the Government that the suit land is part of Survey No.43 of Bholakpur village. Though the suit filed by the plaintiffs has been dismissed the issue has been decided against the Government and in the absence of any appeal filed by the Government or cross-objections by them they cannot seek the modification of the decree. Though the decree is against the plaintiffs, but part of the decree is definitely against the Government. Again at the cost of repetition it has to be observed that the definition of decree makes it clear that decree means formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Therefore, where a Court has conclusively determined an issue it cannot be said as a mere finding, but it has to be treated as a decree within the definition of Section 2(2) of the Code of Civil Procedure 1908. The conclusive determination against the Government cannot be treated as a passing observation or a finding on an issue which is not in controversy. If there is mere passing of a remark or a finding with regard to unconnected matter or a finding not on an issue which is not material then it can be treated as a mere finding. But when the Court has conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit the same in my view attracts the definition of decree. The word “A decree” cannot be restricted to the operative portion of the judgment as understood commonly.
Sri C. Challa Sitaramaiah, learned Senior Counsel, raised a preliminary objection that the appeal filed by the Government is not maintainable since the Government have not preferred appeals challenging the judgment and decree in O.S. Nos.274 and 276 of 1983 and since the decrees passed in those cases became final. It is also his submission that since the claim of the Government has been negatived and the Government did not prefer any appeal the findings of the lower Court on the said issue became final and since the judgment passed by the lower Court in the above referred two suits operate as Res judicata, the present appeal filed by the Government is not maintainable. I find considerable force in the submission of the learned Senior Counsel Sri Challa Sitaramaiah and hold that the objections raised by him are sustainable.
Accordingly, I hold that the findings of the trial court in O.S. Nos.274 and 276 of 1983 that the suit land is not part of Survey No.43 of Bholakpur village operates as Res judicataagainst the Government, since they have not preferred any appeals against the said findings. Therefore, the appeal filed by the Government in CCCA No.194 of 1998 is not maintainable. As far as the issue with regard to the powers of the appellate Court, under Order XLI Rule 33 CPC, are concerned, the same has to be considered in other appeals, therefore I am not inclined to express any final opinion on the said point.
_____________________
B. CHANDRA KUMAR, J.
Date. 01st October 2012.
Note:
LR copy to be marked.
(B/O)
DSH/Nsr
[1] (1974) 2 SCC 151
[2] (1979) 4 SCC 163
[3] (2005) 6 SCC 304
[4] 1993 Supp (2) SCC 146
[5] 1993 Supp (2) SCC 149
[6] 1995(2) ALT 122(DB)
[7] AIR 1966 SC 1332
[8] (2010) 7 SCC 717
[9] AIR 1996 Karnataka 296
[10] (1974) 2 Supreme Court Cases 393
[11] (1995) 6 SCC 733
[12] (2007) 11 SCC 75
[13] (2001) 8 SCC 173
[14] AIR 1996 Madras 94
[15] AIR 1995 SC 1205
[16] (2004) 1 SCC 712
[17] (2002) 2 SCC 85
[18] (2003) SCC 34
[19] (2003) 9 SCC 606
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